#acknowledge: advertising compliance on social media - the solution for stars & sponsors is to get creative

Published 26 June 2013 | Authored by: Alex Kelham

When celebrities tweet about or for their sponsors (or others with whom they have a commercial relationship) it is now clear that to ensure compliance with applicable codes and laws '#ad' or '#spon' are likely to be required. Culprits who have suffered the indignation of ASA complaints include Wayne Rooney, Rio Ferdinand, Katie Price and Keith Chegwin.

Many will suggest that the ASA is wasting its time here: the reality is that this rule is honoured in its breach; and are consumers really likely to be deceived? Surely in the majority of cases consumers will intuitively recognise the commercial exploits of today's celebrities?

However, it would seem the rules are here to stay.  The ASA’s “key tips” for social media issued this month reiterated the need to “make it clear” when consumers are seeing ads and reiterated that  ‘#ad’ or ‘#spon’ should be used to make it obvious, including when a celebrity has been asked to endorse the brand. The US Federal Trade Commission (FTC) went even further in its guidance issued in March 2013. The FTC indicated that, in its view, the inclusion of ‘#ad’ or ‘#spon’ is insufficient (on the basis consumers may not understand them or they may not be sufficiently prominent) and instead proposed that ‘Ad:’ should be placed at the beginning of promotional tweets.  Given the global reach of twitter, the cautious approach (particularly for global stars) would be to follow the US guidance.

But is this right?

Requiring 'warnings' that a tweet is an advert is akin to a warning on a cigarette packet: it will put consumers off the product. So what are the PR agencies, sponsors and agents (who are no doubt behind most of these commercial tweets) to do?

They could risk the wrath of the authorities. A single complaint to the ASA is likely only to lead to a slap on the wrist and a requirement to withdraw or amend the tweet. But those who flaunt the rules do risk heavier, potentially criminal, sanctions.

The rationale for these rules is to ensure that consumers are not misled. In the Keith Chegwin case, he tweeted (without any contractual obligation to do so):

“Just a quickie: Log on to pchprizes.co.uk 4 your chance
2 win £100k plus Win £2,500 a week 4 life. Have a go X”

Keith had a relationship with PCH as its brand ambassador.  It is perhaps fair to say that in this instance it was misleading not to disclose that he had a commercial relationship with PCH. But, you have to be sympathetic with PCH here – Keith decided to send this tweet himself, and wasn’t asked to do so by PCH.

The Rio Ferdinand and Katie Price cases involved a teaser campaign for Snickers. A series of tweets (without promotional content) were followed by a final tweet which, in the case of Katie Price, read:

"You're not you when you're hungry @snickersUk
#hungry #spon lockerz.com/s/176796815"

In both of these cases the ASA accepted that the tweets did not offend the rules, rejecting the complaint on the basis that the initial tweets had no commercial content (so no one could have been duped into buying Snickers), and the final tweet appropriately used “#spon”.  

Harsher judgment was given in the case of Wayne Rooney's tweet:

"My resolution – to start the year as a champion, and finish it
as a champion…
#makeitcount gonike.me/makeitcount”

Despite linking to the Nike website and there being a high degree of public recognition that Wayne is a Nike sponsored athlete, this was deemed to be misleading in the absence of a ‘#ad’ or ‘#spon’.

One area which has so far not received a great deal of attention is the situation where celebrities write positive tweets upon receipt of free gifts. 

Unsurprisingly, celebrities that tweet in this way subsequently get more free gifts, and some seem to make a business of it.  Although there is no obligation on the celebrity to tweet, in certain circumstances this practice may mislead consumers and will fall within the existing rules and codes requiring disclosures of commercial relationships. Celebrities with professional advisors may well be recommended to avoid tweeting excessively about freebies simply on the basis it is not what most fans want from their heroes. However, where the celebrity can’t resist, the best (from a regulatory perspective) approach might be to make it clear in the tweet that the celebrity received the product for free. If the supplier of the gift requested or encouraged the tweet then this will be particularly important.

And what about athletes whose picture on their twitter profile is an image of them in sponsored kit, or not even an image of them, but perhaps of their branded helmet/car/shirt? Should there be a '#ad' superimposed in the corner of the picture? There is undoubtedly significant value to the sponsors in having fans see their brand alongside all of the celebrity’s tweets and, if the celebrity has a contractual obligation to the sponsor in this respect, it's hard to argue that it is not advertising.  Again though, you have to ask, is anyone really misled?  Surely it is obvious to consumers that the kit is branded and sponsored without such a hashtag disclosure?

Perhaps the answer is for agencies to do what they do best - get creative. MotoGP star Bradley Smith recently tweeted:

“Thanks to the @MonsterEnergy ladies and ©photos-AD.COM
I have a new wallpaper #perksofthejob pic.twitter.com/uxXQuRXYdC”

The link is to a photo of Bradley with four MonsterEnergy ‘brolly girls’ all in MonsterEnergy branded clothing. The ‘#perksofthejob’ tag means it would be very hard to argue that this is misleading or suggests anything other than that he has a commercial relationship with MonsterEnergy.  Somehow, though, it manages not to have the turn-off factor of #ad or ’Ad:’.

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About the Author

Alex Kelham

Alex Kelham

Alex is the Head of Lewis Silkin’s Sport Business Group. Her work focuses on advising entities across the sports sector on a wide range of predominantly commercial and IP issues.

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